What this article is not about

Last week, the “Save Lewisham A & E” (@SaveLewishamAE) campaign finally arrived at Court 76 of the Royal Courts of London in the Strand. I should like to give an overview of some of the background issues of this area of law, known as “public law”. To read an account of it, you might like to refer to this brief article on the BBC website.

 

Reconfiguration in the NHS: a need to revisit LeGrand’s chess pieces?

All of this which is the NHS is doing seems to be like one giant 3D game of chess where it is difficult to see all of the pieces. The imposition of the market on the NHS, and the game of chess, is of course a topic more than familiar to Prof Julian LeGrand.

Legrand’s seminal article can be viewed here.

 

The policy background

Reconfiguration is in fact a highly significant issue in social policy. For example, in a very thought-provoking article entitled, “Publics and markets: What’s wrong with Neoliberalism?”, Clive Barnett from the Faculty of Social Sciences at the Open University writes that:

“Thinking seriously about the political rationalities of liberal governmentality should lead to the recognition of how assumptions about motivation and agency help shape public policy and institutional design. For example, market-reforms in social policy in the UK have been partly driven by fiscal pressures dictated by ‘neoliberal’ macroeconomic policies. However, just as important “was a fundamental shift in policy-makers’ perceptions concerning motivation and agency” (LeGrand 2006). LeGrand suggests a stylized (sic) distinction between two models of motivation and two models of agency.

• If it assumed that people are wholly motivated by self-interest, they are thought of as knaves; if they are thought of as motivated by public-spirited altruism, they are knights.
• If it assumed that people have little or no capacity for independent action, then they are thought of as pawns; if they are treated as active agents, they are thought of as queens.

This distinction helps to throw light upon how institutional reconfigurations of welfare are shaped by changing assumptions about how state agencies function, how officials are motivated, how far people are agents, and in particular how agential capacities of recipients can be mobilised to make public officials more knight-like. LeGrand characterizes the post-1979 period of social policy in the UK as ‘the triumph of the knaves’. It involved two related shifts: towards an empirical assumption about the knavish tendencies of professionals working in public administration; and towards a normative assumption that users should be treated more like queens than pawns. The preference for ‘market’ reforms follows from these two assumptions: “if it is believed that workers are primarily knaves and that consumers ought to be king”, then it follows that “the market is the way in which the pursuit of self- interest by providers can be corralled to serve the interests of consumers” (ibid. 9).”

This suggests that the distinction between Keynsian social democracy and neoliberalism is simply a difference between abstract, substantive principles: egalitarianism (and the state as a vehicle of social justice), versus liberty (and the state as a threat to this). Just as significant is a practical difference between two sets of beliefs about motivation and agency (ibid, 12). ‘Neoliberals’ tend to think of motivation in terms of self-interest and egoism, ‘social democrats’ in terms of knights and altruism. And ‘neoliberals’ tend to presume a capacity for autonomous action, whereas ‘social democrats’ presume this capacity is conditioned and therefore can be justifiably cultivated by state action.

The Handbook of Social Geography, edited by Susan Smith, Sallie Marston, Rachel Pain, and John Paul Jones III. London and New York: Sage

Only time will tell whether this approach is fundamentally flawed.

The English law

Where does any legitimate expectation arise from and do they exist in English law?

Consultation with those likely to be affected by a decision increases the transparency of the process. By allowing engagement in the decision-making process, it may lessen the blow for those affected by the decision that is ultimately taken. Legitimate expectations are very important in the English law. Prior to Coughlan, it was unclear “whether substantive legitimate expectations were recognised within UK law”. In order to understand the issues surrounding legitimate expectations, it is useful to consider the actual details of “Coughlan”, R v. North and East Devon Health Authority ex parte Coughlan (2001) QB 213. The claimant, Miss Coughlan, was a quadriplegic who lived in a hospital for the chronically disabled from 1971-1993 called Newcourt hospital. Newcourt hospital was deemed to be unacceptable for modern care and as a result, she was moved to a new, purpose built facility in 1993 called Mardon House that was specifically designed to accommodate severely disabled patients. Miss Coughlan and other residents in the new facility were given an explicit “promise that they could live there ‘for as long as they chose’ whereby it would be their “home for life”. The evaluation in Coughlan primarily hinged upon the Health authority’s promise in providing a ‘home for life’ to the claimant.

Woolf MR stated (at paragraph 57):

“Where the Court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the Court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the Court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”

And what about the actual law? R v. Inland Revenue Commissioners ex parte MFK Underwriting Agents Limited (1991) WLR 1545 in which Bingham LJ and Judge J stated that, for a statement to give rise to a legitimate expectation, it must be:

“clear, unambiguous and devoid of relevant qualification” (para. 1570)

The promise has to be made by the decision maker: R (on the application of Bloggs) v Secretary of State for the Home Department [2003] EWCA Civ 686, [2003] 1 WLR 2724. Further the promise must be made by someone with actual, or ostensible, authority, otherwise the decision will be ultra vires: South Buckinghamshire DC v Flanaghan [2002] EWCA Civ 690, [2002] 1 WLR 2601. Where a promise is contained in a policy of general application it is not necessary for the applicant to show that he knew of the policy provided he fell within the policy’s general scope, R v Secretary of State for the Home Department ex parte Zeqiri [2002] UKHL 3. Detrimental reliance by the applicant is not an essential prerequisite but it may affect the weight that is to be given to the legitimate expectation.

Is there a need for a consultation at all?

Whether or not there is in law an obligation to consult, where consultation is embarked upon it must be carried out fairly. What is ‘fair’ will obviously depend on the circumstances of the case and the nature of the proposals under consideration: see R (Edwards) v Environment Agency [2006] EWCA Civ 877 per Auld LJ at [90]. This rather open-ended doctrine of fairness means that different judges could reach different views on the lawfulness of the consultation process on the same facts. This raises the possibility that the underlying merits of the decision in question could (even sub-consciously) influence the outcome of any challenge. the decision-maker will usually have a broad discretion as to how a consultation exercise should be carried out (see R (Greenpeace) v. Secretary of State for Trade & Industry [2007] EWHC 311 (Admin) at [62] per Sullivan J); and what should be consulted upon (see The Vale of Glamorgan v. The Lord Chancellor and Secretary of State for Justice [2011] EWHC 1532 (Admin) at [25]).

How should the consultation take place?

The decision-maker’s discretion cannot unbounded, however, as it is commonly accepted that certain fundamental propositions must be adhered to. These propositions are known as the Gunning (or Sedley) principles, having been propounded by Mr. Stephen Sedley QC and adopted by Mr. Justice Hodgson in R v. Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168 at 169. They were subsequently approved by Simon Brown LJ in R v. Devon County Council, ex parte Baker [1995] 1 All.E.R. 73 at 91g-j; and by the Court of Appeal in R v. North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 at [108].

The Gunning principles are that:

• the consultation must take place when the proposal is still at a formative stage;
• sufficient reasons must be put forward for the proposal to allow for intelligent consideration and response;
• adequate time must be given for consideration and response; and
• the product of consultation must be conscientiously taken into account.

The English law provides that the actual responses of consultation must be conscientiously considered. This ties in with the first Gunning principle which is really a proxy for whether the decision-maker has made up its mind. If the decision-maker does not properly consider the material produced by the consultation, then it can be accused of having made up its mind; or of failing to take into account a relevant consideration.

Where there are large numbers of individuals who are affected, it may be appropriate to consult with their representatives (e.g. trade unions, or professional bodies). In British Medical Association v. Secretary of State for Health [2008] EWHC 599 (Admin), for instance, a case concerning changes to doctors’ pensions, Mitting J. held that it was sufficient to discharge the consultation obligation for the Minister to have engaged in correspondence with doctors’ leaders. The Court did not say that there needed to be consultation with individual doctors themselves.

Is there ever a need for a re-consultation?

A decision-maker is faced with a conundrum where it has genuinely considered consultation responses and wants to adjust its original proposals, or where circumstances have changed since consultation began. Is the decision-maker required to consult again? This precise issue was discussed by Silber J. in R (on the application of Smith) v East Kent Hospital NHS Trust and another [2002] EWHC 2640 (Admin), [2002] EWHC 2640. Silber J. observed that ‘trivial changes do not require further consideration’ (at [43]). The learned judge was mindful of ‘the dangers and consequence of too readily requiring re-consultation’, noting that in R v. Shropshire Health Authority and Secretary of State ex parte Duffus [1990] 1 Med L R 119, Schiemann J (with whom Lloyd LJ agreed) had stated that:

‘Each consultation process if it produces any changes has the potential to give rise to an expectation in others, that they will be consulted about any changes. If the courts are to be too liberal in the use of their power of judicial review to compel consultation on any change, there is a danger that the process will prevent any change — either in the sense that the authority will be disinclined to make any change because of the repeated consultation process which this might engender, or in the sense that no decision gets taken because consultation never comes to an end. One must not forget there are those with legitimate expectations that decisions will be taken’.

Silber J. concluded that fresh consultation was only required where there was ‘a fundamental difference between the proposals consulted on and those which the consulting party subsequently wishes to adopt’. What then is ‘fundamental’? In R (Elphinstone) v Westminster City Council, [2008] EWHC 1287 (Admin) at [62], Kenneth Parker QC observed that ‘a fundamental change is a change of such a kind that it would be conspicuously unfair for the decision-maker to proceed without having given consultees a further opportunity to make representations about the proposal as so changed.’

Where the Court finds that the consultation process was unfair (or non-existent) it will be in rare cases that the decision-maker will be able to persuade a Court that consultation would have made ‘no difference’. In most cases, a failure to consult fairly will result in the quashing of the underlying decision. In Shoesmith v. Secretary of State for Education [2011] EWCA Civ 852, the Court of Appeal expressed great reluctance to give weight to the ‘no difference’ principle in a case where one might have thought that the decision would inevitably have been the same whatever opportunity to make representations had been provided to the claimant.

In considering the fairness of the consultation, Silber J. held that the council had to comply with the ‘Sedley principles’, and also with the observations of Lord Mustill in R v. Secretary of State, ex parte Doody [1994] 1 AC 531, 550 that ‘Since the person affected cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer’3.

Silber J. held, with respect to the second of the Sedley formulation that:

“It is important that any consultee should be aware of the basis on which a proposal put forward for the basis of consultation has been considered and will thereafter be considered by the decision-maker as otherwise the consultee would be unable to give, in Lord Woolf’s words in Coughlan, either “intelligent consideration” to the proposals or to make an “intelligent response” to it. This requirement means that the person consulted was entitled to be informed or had to be made aware of what criterion would be adopted by the decisionmaker and what factors would be considered decisive or of substantial importance by the decision-maker in making his decision at the end of the consultation process.

I do not think that a consultee would not have been properly consulted if he ought reasonably to have known the criterion, which the decision-maker would adopt or the factors, which would be considered decisive by the decision-maker but that the only reason why the consultee did not know these matters was because, for example, he had turned a blind eye to something of which he ought reasonably to have been aware. Thus, consultation will only be regarded as unfair if the consultee either did not know the criterion to be adopted by the decision-maker or ought not reasonably to have known of this criterion. Of course, what a consultee ought reasonably to have known about the factors, which will be considered decisive by the decision-maker depends on all the relevant circumstances, which may well be different in each case.” [46] – [47]

Conclusion

On the last day of the Lewisham hearing in the High Court, the following was announced, as mentioned on the “Save Lewisham Hospital Campaign: legal challenge” webpage:

“A dramatic back-drop was NHS London’s announcement – strangely coinciding with the final day of our challenge – that they intend to close 9 A&Es from London’s 29 current A&Es over the next 5-6 years.”

The problem about reconfiguration is the “domino effect”, and for all the talk about autonomous units in the NHS, it is clear that this policy is volatile, unstable, and clearly a challenge for people in the community as well as the judiciary. The Lewisham Campaign could just be the tip of the iceberg, as leading QCs and their staff continue to deliberate over whether existant policies imposed by Statute and by the Department of Health are clear and unambigious enough, and whether the Secretary of State is entitled to feel that he has met any tests he has set himself about consultations. From the case law, it will seem that the validity of any consultation will depend on the extent to which the respondents knew about the ambit of the consultation, and it seems that the Court is very keen to hear from those affected by decisions which are made in their name.